Re: Copyright Infringement Happening at Conference Group - Help!

Terry Carroll <carroll[_at_]tjc.com> wrote:
>
> On Thu, 16 Jul 1998, Bill Scanlon <wscanlon[_at_]execpc.com> wrote:
> >
> > Joseph P. Riolo <riolo[_at_]voicenet.com> wrote:
> > >
> > > The most [important] thing to remember is the date March 1, 1989.
> > > Before that date, anyone in the U.S. has to put a copyright notice on
> > > a fixed work in order to secure copyright in the work. After that
> > > date, no one is required to do that. The copyright exists from the
> > > moment a person puts his expression in a fixed material...
> >
> > The date is January 1, 1978 - not March 1, 1989.
> >
> > After January 1, 1978, copyright notice on a work when it is first
> > published in the United States under authority of the copyright owner
> > is not required to secure copyright in the work.
>
> No, Joseph had it pretty much right (although the notice is applicable
> only to published works, not unpublished works). Copyright notice was
> still required on published copies and phonorecords even after the
> Copyright Act of 1976 (Pub. L. 104-553) became effective, although it
> was much more lenient and allowed for the copyright owner to cure the
> omission. The requirement was in sections 401 and 402; the cure
> provision is still in section 405.
>
> Effective March 1, 1989, the Berne Convention Implementation Act (Pub. L.
> 100-568) amended sections 401 and 402 to make the notice optional, rather
> than required, on published copies and phonorecords.

No, Joseph did not "have it pretty much right." Joseph indicated that until March 1, 1989 a work needed a copyright notice or there would be no US copyright. That is not correct. The important date is January 1, 1978 - since that date the existence of US copyright in a work has not required publication with notice.

Yes, it is a true that notice requirements were further liberalized as of March 1, 1989.

Section 405(a) of the present Act, which has been substantively unchanged since January 1, 1978 except that it now applies only to "copies and phonorecords publicly distributed by authority of the copyright owner before [March 1, 1989]" provides three methods of curing the absence of notice, to the extent such notice was required from January 1, 1978 to February 28, 1989:

            [The absence of notice] does not invalidate the copyright
            in a work if -
                (1) the notice has been omitted from no more than a
                relatively small number of copies or phonorecords
                distributed to the public; or
                (2) registration for the work has been made before or 
                is made within five years after the publication without 
                notice, and a reasonable effort is made to add notice 
                to all copies or phonorecords that are distributed to 
                the public in the United States after the omission has 
                been discovered; or
                (3) the notice has been omitted in violation of an 
                express requirement in writing that, as a condition of 
                the copyright owner's authorization of the public 
                distribution of copies or phonorecords, they bear the 
                prescribed notice.

Plainly, then, since January 1, 1978, copyright notice on publicly distributed copies or phonorecords of a work was not required for an US copyright in the work to come into existence.

Bill Scanlon

THE SCANLON LAW OFFICE
Developing Science, Technology and the Creative Arts(SM) Intellectual Property Law
Internet Law

616 South Ingersoll Street, Suite 1
Madison, WI 53703 USA
Phone: (608) 294-1141
Fax: (608) 294-1322
E-Mail: wscanlon[_at_]execpc.com Received on Fri Jul 17 1998 - 21:50:58 GMT